SZARI v Minister for Immigration

[2004] FMCA 464

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZARI v MINISTER FOR IMMIGRATION [2004] FMCA 464

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – asserted bias – applicant alleging he was overborne by the presiding member – observations on judicial personality - no reviewable error found – application dismissed.

Abebe v Commonwealth (1999) 197 CLR 510
Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Randhawa v Minister for Immigration (1994) 52 FCR 437
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
W148/00A v Minister for Immigration (2001) 185 ALR 703

Applicant: SZARI

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ948 of 2003

Delivered on: 23 July 2004

Delivered at: Sydney

Hearing date: 23 July 2004

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ948 of 2004

SZARI

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 12 May 2003.  The RRT affirmed the decision of a delegate of the Minister to not grant the applicant a protection visa.  The applicant is from Bangladesh and made claims of political persecution.  The relevant background facts are set out in paragraphs 1- 4 of written submissions prepared by Mr Reilly on behalf of the Minister.  I adopt those paragraphs for the purposes of this judgment:

   On 12 May 2003 the RRT gave an oral decision affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.

   The applicant applied for the visa on 8 April 2002 (court book, pages 1-37).  On 16 May 2002 the delegate wrote to the applicant informing him of matters adverse to his claims (court book, pages 38‑41), to which the applicant did not respond.  On 4 July 2002 the delegate refused the visa (court book, pages 42-50).  The applicant applied to the RRT for review on 12 July 2002 (court book, pages 51‑54).  The RRT held a hearing on 12 May 2003 (court book, page 77).

   The applicant claimed to fear persecution in Bangladesh for reason of his political opinion.  He claimed to be a leading member of the student wing of the Awami League (AL) and to have been targeted by members of the rival Bangladesh National Party and Chattra Dal.  He claimed to have been threatened with death, that his house had been ransacked and false charges had been laid against him, and that he was severely injured in an attack on 10 March 2002 after returning from New Zealand, and that he was thereafter in hiding before leaving for Australia on 26 March 2002.  See generally court book, pages 25-30,  66-75, 83-91.

   The RRT found that the applicant’s claims were vague, contradicted in some respects by his oral testimony and independent country information, and ultimately found that he had exaggerated or fabricated some of his claims and did not even have a genuine fear of persecution.  While the RRT accepted that the applicant may have been a AL member, it did not regard as credible his claims to have suffered persecution in the past, noting that he did seek to leave Dhaka, that very similar claims and wording had been used in other cases involving the same adviser, and that the applicant had on his oral testimony been able to leave Bangladesh legally on his own passport without difficulty.  The RRT concluded that the applicant was not wanted by the authorities, did not even have a fear of harm from them, and further that if, contrary to these findings the applicant did have any fear of harm it was reasonable to expect him to relocate within Bangladesh.  See generally court book, pages 95-102.

2. The application for judicial review filed on 28 May 2003 is in precisely the same terms as several other applications before the Court.  The application asserts jurisdictional error but provides no particulars.  The application also asserts a breach of the rules of procedural fairness.  It also asserts that the decision was made on no evidence.  No particulars are given of either assertion.  Orders were made by consent by a registrar in this matter on 17 July 2003.  The applicant was ordered to file and serve an amended application and any evidence on which he proposed to rely on or before 22 September 2003.  The applicant has not complied with the order for an amended application and has chosen not to file any evidence.  The evidence that I have before me is limited to that included in the book of relevant documents. 

3. The applicant filed written submissions on 19 July 2004.  In those written submissions the applicant asserts bias.  It is not entirely clear whether the applicant asserts actual bias or a reasonable apprehension of bias.  An assertion of a reasonable apprehension of bias would be consistent with the asserted breach of the rules of procedural fairness alleged in the application.  Both jurisdictional error and procedural fairness are referred to in the written submissions.  There is no doubt that a finding of a breach of the rules of procedural fairness will establish jurisdictional error invaliding a decision of the RRT.  It is apparent from the written submissions and the oral submissions made by the applicant today that the applicant is concerned that the RRT approached the hearing on 12 May 2003 with a closed mind.  The matters leading the applicant to this view are, first, that he was not believed.  However, that goes to the merits of the RRT decision which was based on a credibility finding.  It is the task of the RRT to assess the credibility of the claims made to it.

4. The invitation issued to the applicant to attend the hearing before the RRT is set out on page 60 of the court book.  That letter begins:

   The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.

5. It should have been obvious to the applicant and his adviser, Mr Kazi, from that letter that unless the applicant attended the hearing and persuaded the RRT to the merits of his claims the visa application would fail.  The letter is clearly indicative of a preliminary view but not indicative of a closed mind.  The RRT was simply observing its procedural fairness obligation to offer the applicant a hearing in circumstances where the RRT had formed a preliminary view on the material before it.

6. The applicant is concerned that the RRT gave its decision immediately at the end of the hearing.  There is nothing wrong in that.  It is quite common for courts as well as tribunals to give decisions orally immediately at the end of a hearing.  Indeed, I am doing so today.  The applicant is concerned that he was given at the end of the hearing the letter appearing on page 78 of the court book.  He showed me the original to which was attached three sheets of pro forma general information.  The fact that that letter was prepared apparently prior to the hearing is not indicative of a closed mind.  It is indicative that the presiding member wished to pursue a course of administrative convenience in the event that he was unpersuaded by the applicant at the hearing. 

7. The applicant told me that he was concerned at a number of things said by the presiding member at the hearing.  He has not prepared a transcript of the hearing.  He produced three tapes of the sound recording of the hearing.  I understand that the hearing lasted approximately three hours.  He invited me to listen to the tapes. 

   
   

   I declined to do so.  I made that decision because the applicant was unable to tell me what particular parts of the tapes were material to his claims.  It was impracticable for me to listen to a three hour set of tape recordings at today's hearing.  The applicant has had ample opportunity to produce evidence in a form convenient to the Court prior to the hearing.  In addition, I saw no reason to delay the decision in this matter because the matters referred to by the applicant as having been said by the presiding member do not assist him.

8. The applicant said that the presiding member asserted that he was aware of political circumstances in Bangladesh.  I have no reason to disbelieve that assertion.  The RRT assigns cases to presiding members on the basis of experience gained by presiding members in relation to particular language groups or countries of origin.  This presiding member apparently deals in particular with claims by Bangladeshis.  It is hardly surprising that the presiding member may have referred to his knowledge. 

9. The applicant asserts that the presiding member told him that he thought a number of his documents were false.  This is to some extent corroborated by an observation made by the presiding member on page 97 of the court book.  The presiding member there said:

   I have no difficulty in accepting that the applicant may have been a member and officeholder in the two Awami League organisations he claimed.  In doing this, I do not rely in any way on the two documents submitted in April 2003 (see paras 10B and 10C) because, as indicated in those paras and in para 14, the format and contents of the documents are strongly suspect.  Nevertheless, I do not quibble on this matter of membership and officeholding because the country information (for example, CX60675 on page 14) indicates that, although Bangladesh politics continues its long tradition of violence, the current government is not pursuing a campaign of persecution of its Awami League opponents.

10. In his oral submissions the applicant confirmed that the presiding member in this passage was indeed referring to the documents which at the hearing indicated he thought were false.  It is entirely appropriate and, indeed, often necessary for presiding members to disclose doubts about the veracity of documents.  Such disclosure would often be necessary where the rejection of documents may be significant in the decision made by the RRT.  In expressing his doubts about the veracity of certain documents the presiding member was doing no more than observing his procedural fairness obligations.  As matters turned out the disclosure was unnecessary because the documents were not relied upon by the presiding member in rejecting the applicant's claims.

11. The applicant also told me that the presiding member said that documents he had prepared in support of his claims had been copied from other cases.  The presiding member expresses similar concerns in his written reasons.  He probably did say what the applicant asserts at the hearing.  The similarity of the claims made by the applicant through his adviser, Mr Kazi, with other cases was a matter of concern to the presiding member.  In the circumstances, it was appropriate and probably necessary for the presiding member to disclose that concern at the hearing.  I accept that he did so.

12. A matter referred to by the applicant several times in his oral submissions and also given prominence in his written submissions is that the applicant asserts that the presiding member made mention of the fact that he is a son of an ex Prime Minister of Australia.  It is not clear to me what the significance of that revelation may have been.  It is not my practice to personalise decisions on review of RRT decisions by identifying the presiding member by name.  In this case, the assertion having been made by the applicant, it is necessary to do so.  The presiding member was Mr S Whitlam, a son of former Prime Minister Gough Whitlam.  I had no reason to disbelieve the applicant when he says that the presiding member referred to the fact that he is a son of former Prime Minister Gough Whitlam.  It is unclear what relevance that statement may have had in the context of the hearing. The applicant was claiming political persecution.  It may simply have been that Mr Whitlam wished to draw attention to his knowledge of political issues.  That possibility draws support from a statement made by the presiding member on page 99 of the court book.  There he says that:

    It is a universally-acknowledged truth that no politician wants to be in opposition - the power and challenges (and perks) of government are much to be preferred.

13. The applicant asserts that, on being told by Mr Whitlam that he was the son of a former Prime Minister, he (the applicant) was frightened and overborne.  Mr Whitlam, being the son of former Prime Minister Gough Whitlam, appears to have inherited some of the attributes of his illustrious parent.  One of those is a formidable command over the English language.  His reasons always make interesting reading.  He is one of the more individualistic members of the RRT.  He is often forceful and direct in making credibility findings.  There is nothing wrong with that.  He was forceful and direct in this case.

14. Where a presiding member has a clear view on a want of credibility in claims made it is both appropriate and desirable that the presiding member say so in clear terms.  Presiding members should be able to expect support from courts on appeal where they call a spade a spade.  Unfortunately, this applicant in attending the RRT hearing was exposed as an Ananias and suffered the inevitable consequences of that exposure.  The experience, both for him and for his adviser Mr Kazi, who drew some trenchant criticism from Mr Whitlam, may not have been a pleasant one.  That is unfortunate for them but it does not indicate bias.  Just as there are a wide variety of personalities in courts there is no doubt a wide variety of personalities in tribunals.  Some judges, and no doubt some tribunal members, rule their courts and tribunals on a basis akin to the Spanish Inquisition, relying upon fear, surprise and ruthless efficiency.  Others at the other extreme, preside with kindness, gentleness and even sympathy for those appearing before them.  Many fall somewhere in between.  A strong personality does not lead to any conclusion of bias or a reasonable apprehension of bias.  If it did, some judges, including very senior judges, would be unable to sit at all.  The modern tendency is to prefer a gentle rather than a severe approach. I take Mr Reilly to be a supporter of the old school.  Sometimes severity is called for. 

15. The important thing is for the presiding member not to cross that indefinable line between acceptable severity and an approach which is indicative of bias or a reasonable apprehension of it.  Where presiding members are dealing with claims which are very similar, if not, identical, and which are very large in number, there is a risk that the presiding member will develop such a jaundiced view that a reasonable apprehension of bias might occur.

16. On my reading of Mr Whitlam's reasons, he did not cross that indefinable line.  He was certainly frank in his adverse comments about the credibility of the applicant's claims and the role played by his migration adviser.  I do not regard those comments as inappropriate in the circumstances of the case.  The credibility findings made by the presiding member were reasonably open to him on the material before him.  The proceedings before the RRT were fair.  There was obviously evidence before the RRT to support the findings made.  For completeness I adopt paragraphs 5 and 6 of Mr Reilly's written submissions:

    It is apparent that the applicant was unsuccessful because of the view the RRT took of the facts, in particular its findings that the applicant was not credible and his claims exaggerated or fabricated.  Such findings are matters of fact for the RRT par excellence: Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the RRT’s credibility findings were open to it, no error is demonstrated in such conclusions: Kopalapillai v Minister for Immigration (1998) 86 FCR 547 (FC) at 558-559; W148/00A v Minister for Immigration (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and R D Nicholson JJ. The RRT’s conclusions were open for the reasons it gives. Moreover the RRT’s conclusion that it was reasonable for the Applicant to relocate within Bangladesh, correctly applying Randhawa v Minister for Immigration (1994) 52 FCR 437 (FC) is also a finding of fact that independently necessitated the failure of the applicant’s claim to the visa.

    The application does not properly particularise any error in the RRT’s decision, and appears to seek merits review.  However the Court cannot review the merits of the RRT’s decision: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let alone a jurisdictional error, in the RRT making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].

17. There is no jurisdictional error in the decision of the RRT.  The decision is therefore a privative clause decision.  I will dismiss the application.

18. On the question of costs, the application having been dismissed, costs should follow the event.  Mr Reilly seeks a costs order fixed in the sum of $3,500 on a party and party basis.  I understand that the Minister's solicitor and client costs are something in the order of $4,000, possibly somewhat more.  The applicant did not wish to make any submissions on costs, other than to indicate his inability to pay costs immediately.  On a party and party basis, in my view, in this matter an order fixed in the sum of $3,000 would be adequate.  I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  5 August 2004